Creepshot Law Held Unconstitutional: New Cases in Texas Child Pornography Defense

The prosecution of child pornography cases just got a bit harder here in Texas after the highest criminal court in the state, the Texas Court of Criminal Appeals, issued its opinion last week regarding photographs taken of children in public places here.

The court ruled that “upskirt” photographs are not illegal, no matter how disturbing they may be to some, and that the Texas law making them illegal, the “anti-creepshot“ law, is unconstitutionally violative of the photographer’s free speech and freedom of expression.

The First Amendment states “Congress shall make no law . . . abridging the freedom of speech.”   The Texas creepshot law, Section 21.15(b)(1) of the Texas Penal Code, cannot be enforced now that this CCA opinion has been issued.

It’s a serious blow to child pornography prosecution, and it’s a case that has garnered international news coverage.

Read the opinion in Ex Parte Thompson here.

Ex Parte Thompson is a big, big deal for child pornography criminal defense lawyers, too.  Why?

It looks like this new CCA ruling will not only mean that: (1) pending investigations and child porno charges will have to be dropped by state prosecutors, but (2) some folk who are behind bars based upon child pornography convictions supported by “improper photo” evidence may now have grounds to get those convictions overturned.

Prosecution and Investigation of Child Pornographers is Fierce

Anyone reading the news or watching any one of a number of television crime dramas is well aware of the extent to which law enforcement attempts to ferret out and arrest men and women who are dealing with child pornography in any way — from possession to distribution to creation of products (images, videos) for sale.

From a defense standpoint, it’s a question of how far these investigations will go in their attempts to locate and charge a perpetrator. Consider the recent case of U.S. v. Dreyer that’s causing some concern now that the Ninth Circuit Court of Appeals over in San Francisco has become involved.

You can read that opinion here.

In this case, a federal agent working a keyboard in Brunswick, Georgia, surfed the web as part of his job to sniff out child pornography online, He found evidence of underage pornographic photographs and video on a trading web site, downloading three examples for evidence. The federal agent’s discovery was shipped over to local law enforcement in Algona, Washington, where the downloads were used as the basis for getting a state judge to sign off on a search warrant.

Algona police officers then went on the road, grabbed the contents of a computer hard drive, and state prosecutors used the stuff on the computer to prove up and convict a local man for both possession and distribution of child pornography. Based upon the federal agent’s download discoveries, Mr. Dreyer was sentenced to 18 years in prison.

The concern in this federal – state cooperation is that the federal agent worked for NCIS (yes, like the TV show), not the FBI, and his job was to sniff out military personnel that were involved with child pornography online. He was in an NCIS office in Georgia surfing a trading site based in Washington State, and his job that day was to find military folk in Washington State who might be trading in child pornography.

How his efforts boiled over from looking for violators in Washington State that were military personnel to a civilian living there is a cause of concern. The federal appeals court voiced its worries over this situation eloquently, explaining it as “… a profound lack of regard for the important limitations on the role of the military in our civilian society.”

Ex Parte Thompson Ruling on Upskirt Photos

In 2011, the same year that the federal agent was surfing Washington State trading sites in the Dreyer case, a man named Ronald Thompson was arrested in San Antonio and charged with 26 different counts of violating a Texas statute that made it against the law to take certain kinds of photographs. In Thompson’s case, he was at a San Antonio water park where he was taking photographs underwater of children swimming and playing in the park’s pools and rides.

The Texas law defines it to be a crime if one takes photographs or visual images and: (1) the person being photographed or recorded is not in a bathroom or private dressing room, (2) the photograph or recording of the person is made without that person’s consent, and (3) the photograph or recording is made with the intent to arouse or gratify the sexual desire of any person.

Ronald Thompson appealed his conviction, arguing that the law outlawing these photographs was unconstitutionally overbroad. His argument was that the law’s language can be read to criminalize all kinds of photographs, even those taken by professional journalists.

The Court of Criminal Appeals agreed.

Writing for the 8-1 majority, Chief Justice Sharon Keller explains (emphasis added):

The inherently expressive nature of pictures is reflected by the fact that phrases like “a picture is worth a thousand words” and “every picture tells a story” are considered cliches. We conclude that photographs and visual recordings are inherently expressive….

The camera is essentially the photographer’s pen or paintbrush. Using a camera to create a photograph or video is like applying pen to paper to create a writing or applying brush to canvas to create a painting. In all of these situations, the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes. This is a situation where the “regulation of a medium inevitably affects communication itself.” We conclude that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves….

And with respect to photography or visual recordings of people in public, we do not find the State’s asserted privacy interests to be particularly substantial. A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their heads. “[P]rivacy interests fade once information already appears on the public record.” Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of “paternalistic interest in regulating the defendant’s mind” that the First Amendment was designed to guard against.[103] We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression. We conclude that the improper-photography statute implicates First Amendment expression on its face….

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For more on child pornography laws in Texas, read our Sex Crimes resources page.

To learn about Michael Lowe’s case results in defending child pornography possession charges and other sex crime allegations, go here.